TNAG-2817-FCO40-4063-Future-of-Hong-Kong-Sino-British-Joint-Liaison-Group-sub-gro-1993 — Page 55

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contract of employment. His contract is suspended by the strike and upon its conclusion the employee is entitled to return to work. This is the position, for example, in France. With freedom to strike, the strikers do not enjoy the legal protection to obviate their contractual liability at common law. An employee who takes part in a strike may at common law breach his contract of employment and be subject to disciplinary action, including dismissal. This is the position, for example, in the UK. A summary of overseas practice is at Annex D.

13.

Neither the Hong Kong Bill of Rights Ordinance (Chapter 383) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides employees with the "right to strike". In accordance with the practice of many of the Contracting Parties to the ICESCR, including the UK, the Contracting Parties are obliged to refrain from any legislative or administrative action which would prohibit or otherwise interfere with the freedom to strike but are not obliged to enact legislation which would effectively have to override a striking employee's contract of employment.

14.

Introducing a right to strike in Hong Kong would give rise to problems. Overseas experience has shown that such a practice tends to encourage strikes even for trivial reasons because strikers no longer fear job loss. It is very likely that frequent strikes would reduce the economy's competitiveness and its attractiveness to foreign investors. It is not necessary to change the current provision on the right to strike in the law. Nevertheless, it is proposed that the protection afforded to striking employees should be improved.

15.

At present, an employee who is dismissed for refusal to work as in the case of a strike may lose his right to severance payment and long service payment. To protect striking employees, it is proposed that the employee's eligibility to severance payment and long service payment should be retained if he is summarily dismissed for refusal to work during the strike period. However, such protection will be provided only when the striking employees have given not less than seven days' written notice to their employer of their intention to strike. The 7-day period will enable both parties to calm down and to hasten direct negotiation. Besides, it will also give the Labour Department time to conciliate in the dispute.

Picketing

16.

Peaceful picketing is permitted under the TUO. However, intimidation, obstruction and breach of the peace are unlawful and commission of these acts is an offence.